Property Division Lawyer In Augusta
Smith & Smith Attorneys at Law
Property Division is where the assets, property and items of value acquired by the couple during the course of the marriage (marital assets) are divided. Premarital assets ( those assets, property and items of value owned prior to the marriage) are usually not subject to division. The rule of law in Georgia that governs the division is referred to as "equitable division." Equitable division does not necessarily mean 50/50. Many factors play into the determination as to how division is achieved.
Salary and income, maintaining the home, emotional support, support during the education of one party and other aspects of what was put into the marriage by each side all come into play in the division of assets. Issues such as abuse, infidelity, drug and alcohol abuse, and other similar causes for divorce also play a part in the division of assets.
Houses are often sold and the proceeds divided. When one party keeps the marital home, they are generally required to refinance the home in order to buy out the other party. Retirement accounts are subject to equitable division.
At the end of the divorce, all financial ties between the parties need to be severed. There should be no lingering joint financial responsibilities and indebtedness.
Here are some helpful DO'S and DON'TS for the next time around:
- DO consider entering into a prenuptial or premarital agreement prior to marriage to make it clear which property is not subject to division upon your death or divorce.
- DO maintain accurate and complete books and records to establish the separate nature of property you wish to keep separate from the marital estate, such as that held by you prior to marriage or received by you alone as a gift or inheritance during the marriage.
- DO continue to keep all separate property separate throughout the marriage if you are concerned about keeping it in your family or as your personal asset upon your death or divorce. That means that you should not “commingle” property you owned prior to marriage with property you and your spouse acquire during the marriage, or it may become difficult, if not impossible, to legally determine which is which.
- DO be aware that the increase in value of nonmarital property may be considered marital, such that each spouse is entitled to a share upon divorce or the death of the property owner, especially if the appreciation in value is considered “active” rather than “passive.” Passive appreciation is, for example, the increase in value of a bank account as a result of interest earned, or the increase in value of property merely as a result of inflation. Active appreciation, on the other hand, occurs as a result of some form of actual effort; such as, by repainting the rental property, actively managing the stock portfolio, or working behind the counter at your spouse’s store.
- DO use only your nonmarital property to purchase or in exchange for other property if you want that other property to be nonmarital. In other words, the vacation house you pay for with money you had before marriage and kept in a separate account after marriage will be considered nonmarital property, but if your spouse pays for part of it, or even helps to maintain it, or manage it, it could lose that characterization.
- DO keep personal injury proceeds acquired during marriage separate to retain their nonmarital character. The money from such a lawsuit is yours , except for the portion that compensates you for your lost income or your spouses loss of services.
- DON'T use nonmarital money to pay off marital debt, or it can lose its nonmarital protection.
- DON'T make deposits of income earned during the marriage (which usually is considered marital) into nonmarital accounts or the money in those accounts may become marital.
- DON'T open a joint bank account with nonmarital funds, even if you intend to keep track of which portion is nonmarital, or which portion is your nonmarital and which is your spouse’s nonmarital money. Maintain separate accounts. This also applies to debt. Attempt to keep all debt and assets separate; such as, title and debt on your vehicle.
- DON'T assume that just because you owned property prior to marriage no portion of it will be deemed marital. If, for instance, the home you owned before marriage increases in value during the marriage as a result of you and your spouse’s efforts to maintain and improve it, your spouse may be entitled to an equitable portion of that increase in value.
- DON'T assume that your business remains entirely a nonmarital asset after marriage. If your business or professional practice increases in value throughout the marriage due in part to your spouse’s contributions, whether they are in the form of doing the bookkeeping, entertaining clients, or taking care of the home and children so that you can put in those long hours, your spouse may be entitled to a share of the increase in value upon divorce or your death.
As you can gather, these are complicated issues. It is best to consult a professional to insure the safety of your assets and funds.
Smith & Smith Attorneys at Law specialize in property division. Our attorneys have over twenty years of experience both in and out of the courtroom setting.